The Major Crimes Act (“MCA”), 18 U.S.C. §1153, was first enacted by Congress in 1885, in direct response to the United States Supreme Court 1883 decision in Ex Parte Crow Dog. The MCA gives the United States jurisdiction to try and punish serious crimes committed by Indians within Indian Country.
At the time the Major Crimes Act was passed, the federal and territorial courts of the United States did not have jurisdiction to try an Indian for the murder of another Indian (or for any other serious crimes). In Crow Dog, the defendant Crow Dog, a Brule Sioux Indian, was accused of killing Spotted Tail, also a member, on their reservation. The Tribe dealt with the matter by following their traditional rules which focused on restitution to Spotted Tail’s family.
Crow Dog was convicted of the murder by the court in the First Judicial District of the Territory of Dakota and sentenced to death. He then filed a writ of habeas corpus claiming that his imprisonment was illegal because the district court had no jurisdiction to try him. The Supreme Court held that neither the federal nor territorial courts had jurisdiction to try an Indian accused of murdering another Indian and ordered that Crow Dog be released. Crow Dog was an extremely important decision by the Supreme Court because of its intense protection of tribal sovereignty. However, Congress reacted to this decision by passing the Major Crimes Act two years later. The constitutionality of the MCA was upheld in United States v. Kagama, 118 U.S. 375 (1886). In that case, two Indians were federally indicted for murdering another Indian on the Hoopa Valley Reservation in California. The Supreme Court found that jurisdiction under the MCA was proper.
There are four fundamental elements that must exist in order for the Major Crimes Act to apply. Those are: (1) An Indian must commit (2) against the person or property of another Indian or other person (3) one of the enumerated offenses (4) within Indian Country. The definition of “Indian Country” is codified at 18 U.S.C. § 1151.
Originally, only seven crimes were enumerated in the MCA, but it has been amended several times, so that it now contains 15 offenses: murder, manslaughter, kidnapping, maiming, a felony under Chapter 109A (sexual abuse), incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, assault against an individual under the age of 16, arson, burglary, robbery, a felony under 18 U.S.C. §661 (embezzlement and theft).
Prosecutions for crimes under the Major Crimes Act follow the federal definitions of crimes if they exist. Where no federal definition exists, the crime will be prosecuted using the relevant state definition. The Major Crimes Act applies in cases only against a person and the victim need not be Indian.
Indian Country is plagued by violent crime. Overall, violent crime rates on Indian reservations are more than 2.5 times higher than the national crimes rates. Some reservations have rates that are 20 times the national rates. More than 2 in 5 American Indian women will be domestic violence victims in their lifetimes, and more than 1 in 3 American Indian women will be raped in their lifetimes. Despite these staggering statistics, federal officials have in the past 5 years declined to prosecute approximately 50% of alleged violent crimes in Indian Country. This statistic includes a 75% declination rate for alleged sex crimes against Indian women and children. In 2010, the Tribal Law and Order Act was signed into law. It is hoped that this Act will increase the number of federal prosecutions that go forward in Indian Country.